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The Family and Medical Leave Act (FMLA)

Highlights of Changes

Mike Staebell USDOL Wage Hour Division

2009

Agenda

FMLA

Background Information Required Posting Required Employer Notices Required Employee Notice Certification Forms Clarification and Authentication Changes to FMLA ­ New Certification, Fitness for Duty, Light Duty, Compensatory Leave, and Overtime

Military Family Leave

Qualifying Exigency Leave Military Caregiver Leave

Questions

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Background Information

Effective Dates

­ Medical FMLA ­ August 5, 1993 ­ Noncontract ­ February 5, 1994 ­ Contractcovered ­ Military Family Leave ­ January 28, 2008 ­ Military Caregiver ­ January 16, 2009 ­ Qualifying Exigency

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Background Information

Eligibility for FMLA

­ 12 months of employment during the past seven years ­ 1,250 hours worked in the 12 months immediately preceding the date leave is to begin

Maximum Length of Leave

­ Up to 12 weeks of medical and/or qualifying exigency FMLA leave in a fiscal year ­ Up to 26 weeks of military caregiver leave in a 12 month period ­ Continuous, intermittent or reduced schedule leave

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Background Information

Qualifying Reasons for FMLA Leave

­ Birth of a son or daughter and to care for the newborn child ­ Placement of a son or daughter for adoption or foster care ­ Care for the employee's spouse, son, daughter or parent with a serious health condition ­ Serious health condition that makes the employee unable to perform the functions of the employee's job ­ Qualifying exigency for covered military member ­ Care for ill or injured covered servicemember

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Background Information

Continuing Treatment ­ Changes to definitions

­ Incapacity of more than 3 calendar days and treatment

Treatment

­ Two or more times by health care provider within 30 days of the first day of incapacity ­ Treatment by health care provider on at least one occasion that results in a regimen of continuing treatment under the supervision of a health care provider ­ First visit ­ within 7 days of the first day of incapacity

Chronic conditions

­ 2 or more visits to a health care provider per year

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Required Posting

Employee Rights And Responsibilities Under The Family And Medical Leave Act

Provided to each employee when hired Printed and posted for employees that do not have access to computers at work

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Required Employer Notices

Two New Notices

1. Notice of Eligibility and Rights & Responsibilities

­ Provided to an employee with 5 business days of the date · An employee requests FMLA · Employer becomes aware that an employee's leave may be FMLAqualifying

2. Designation Notice

­ ­ Provided to an employee once employer has sufficient to determine that is FMLAcovered Employee must be notified within 5 business days that the leave has been designated as FMLA

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Required Employee Notice

Family and Medical Leave Application

­ Sufficiently explain reasons for leave

Calling in sick is not considered sufficient notice Leave may be denied if the employee fails to adequately explain the reason for leave Employee must inform you if the leave is for a reason which was previously certified

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Employee Medical Certification Form

Certification of Health Care Provider for Employee's Serious Health Condition (Form WH 380E) Provides space for employee's essential job functions Check off to indicate that the employee's job description is attached

Employee allowed 7 calendar days to provide the additional information if the certification is incomplete or insufficient

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Family Member Medical Certification Form

Certification of Health Care Provider for Family Member's Serious Health Condition (WH380F)

Asks for detailed information about the family members' condition Amount of time the employee might need to care for the family member

Employee allowed 7 calendar days to provide additional information if the certification is incomplete or insufficient

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Clarification and Authentication

Employer may contact the health care provider to

­ Clarify information on medical certification form ­ Authenticate medical certification form

Limited to contacting health care provider to:

­ understand handwriting on the certification ­ understand the meaning of a response ­ request verification that information on the certification form was completed and/or authorized by the health care provider who signed the document

No additional medical information may be requested

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Clarification and Authentication

HIPAA requirements must be satisfied when employee health information is shared with an employer by a HIPAAcovered health care provider Employee's responsibility to provide complete and sufficient certification and to clarify if necessary If employee does not provide a required HIPAA release, and; If employee does not authorize employer to clarify the certification with the health care provider, and does not otherwise clarify the certification, FMLA leave may be denied

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Clarification and Authentication

Employer contact must be made by

­ Health care professional ­ Human resources professional ­ Leave administrator ­ Management official As determined by the employing department

Under no circumstances may the employee's direct supervisor contact the employee's health care provider

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New Medical Certifications

Approval is on leave year basis If the need for leave lasts beyond the leave year employee can be required to provide a new medical certification in each subsequent leave year

­ Second opinion can be requested on new certification EXAMPLE: John provides a certification for intermittent leave on May 1st. The duration is "unknown"; leave is approved to the end of the leave year (Dec. 31). John can be required to provide a new certification at the start of the new fiscal year on Jan. 1 and a second opinion can be requested.

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Fitness for Duty

Employer may require a fitnessforduty certification May require the certification specifically address the employee's ability to perform the essential functions of their position The employee must be provided with a list of essential functions of the employee's job no later than when the Designation Notice is provided to the employee

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Light Duty

Time that an employee spends working light duty does not count toward the 12 week FMLA entitlement during the leave year Employee is entitled to job restoration for the remainder of the leave year

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Compensatory Leave

Employees may request or may be required to use

­ Accrued compensatory leave (public sector) ­ Sick Leave ­ Vacation Leave

During periods of FMLA leave

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Inability to Work Overtime

Missed overtime must be counted against an employee's FMLA entitlement if the employee would have been required to work overtime but for their FMLA condition

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Qualifying Exigency Leave

Military Family Leave

­ Leave taken by an eligible employee for any qualifying exigency arising out of the fact that a covered military member (National Guard or Reserve) is on active duty or call to active duty status

Military Caregiver Leave

­ Leave taken by an eligible employee to care for a covered servicemember with a serious injury or illness

Qualifying Exigency Leave Parent Spouse Son Daughter Next of Kin

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Military Caregiver Leave

Military Family Leave

Eligibility Requirement for Military Family Leave

12 months of employment in the past 7 years 1,250 hours worked in the 12 months immediately preceding the date leave is to begin

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Son or daughter

Son or daughter of a covered servicemember

­ Biological, adopted, foster or stepchild, legal ward, or child for whom the service member stood in loco parentis ­ Of any age

Son or daughter on active duty or call to active duty

­ Employee's biological, adopted, foster or step child, legal ward, or child for whom the employee stood in loco parentis ­ On active duty or call to active duty status ­ Of any age

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Qualifying Exigency

Qualifying Exigencies Include

­ ­ ­ ­ ­ ­ ­ ­ Shortnotice deployment ­ up to 7 days Military events and related activities Childcare and school activities ­ not routine child care Financial and legal arrangements ­ up to 90 days after service ends Counseling Rest and recuperation ­ shortterm only, up to 5 days Pastdeployment activities ­ up to 90 days after service ends Additional activities ­ as agreed upon by employer and the employee

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Qualifying Exigency Leave

Maximum Length of Leave

­ 12 weeks of qualifying exigency leave

Covered Military Member

­ Employee's spouse, son, daughter or parent who is on active duty or call to active duty

Active Duty or Call to Active Duty Status

­ A member of the National Guard or Reserves ­ Under a call or order to active duty in support of a contingency operation ­ Not regular armed forces

No recertification

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Request Qualifying Exigency Leave

Certification of Qualifying Exigency for Military Family Leave (Form WH384)

An employee must provide notice of the need for qualifying exigency leave as soon as practicable.

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Military Caregiver Leave

Serious Injury or Illness

­ Injury or illness incurred in the line of duty on active duty that may render the servicemember medically unfit to perform the duties of the member's office, grade, rank, or rating.

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Military Caregiver Leave

Covered Servicemember

­ Member of Armed Forces (including National Guard or Reserve) ­ Undergoing medical treatment, recuperation, or therapy ­ In outpatient status ­ Temporary disability retired list ­ Serious injury or illness ­ Incurred in the line of duty on active duty

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Next of Kin

Nearest blood relative other than spouse, parent, son, or daughter, in order of priority:

­ Blood relatives who have been granted legal custody of the covered service member by court decree or statutory provisions ­ Brothers and sisters ­ Grandparents ­ Aunts, uncles and first cousins

Unless service member has designated a single blood relative as next of kin

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Military Caregiver Leave

Maximum Length of Leave

­ Up to 26 weeks of military caregiver leave in a 12 month period ­ 12 month period starts on the first day the employee takes military caregiver leave ­ Any combination of absences in the 12 month period, including medical FMLA, may not exceed 26 weeks

Use of Leave "per member" and "per injury"

­ Use leave to care for the same family member with different illness or injury or ­ Use leave for a different family member

No second or third opinion

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Request Military Caregiver Leave

Certification for Serious Injury or Illness of Covered Servicemember ­ for Military Family Leave (Form WH-385)

Must provide 30 days advance notice for planned medical treatment for a serious injury or illness of a covered servicemember. When 30 days advance notice is not possible, the employee must provide notice as soon as practicable When the need for leave is unforeseeable, an employee must comply with an employer's normal notice or callin procedures, absent unusual circumstances.

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Questions

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Information

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